not sure if you have read the HSE guide to the EAWR

https://www.hse.gov.uk/pubns/priced/hsr25.pdf

but page 16 of the PDF discusses the significance of section 4(2).

perhaps germane is para 67

67 The obligation to maintain arises only if danger would otherwise result. The
maintenance should be sufficient to prevent danger so far as is reasonably
practicable.


Suggesting that the condition that one may be 'gripping the bar' in respect of section 4(2) is when a system was not well maintained and then became dangerous.
I guess the idea is that one cannot claim to have exercised due diligence in something not done.

also suggesting no need to maintain at all if there is no failure mode that is actually a danger.

I can see scope for confusion though.

I'm not sure looking at some of the photos of ancient stuff rotting away, meter boxes with covers missing etc, that pop up on here from time to time, that this is a reasonable position - there are plenty of poorly maintained and could be dangerous assets out there, for which the responsible party is probably in blissful ignorance.

folk like JP can probably comment from a position of having seen both sides.

Mike.

I am not sure of your question, it reads like you are saying the Defence regulation (29 https://www.hse.gov.uk/pubns/priced/hsr25.pdf) can apply to regulation 4(2).

Which it doesnt, as per the wording in that section it only applies to 4(4), which is also mentioned in 4(4).

Can you please clarify if my understanding of the question was correct? or where I went wrong.

Thanks

Mike

My question is, what defence is valid for a breach of maintenance Reg 4 (2)? and why is this exempt?

The other regulations already have a "as far as reasonably practical" get-out clause. The ones that don't are "absolute" requirements - so if it goes wrong the assumption is that they duty holder was at fault - I think what they're trying to say is that if you did all you possibly could (i.e. way beyond reasonably practical) that might form a defence when in court.

   - Andy.